FINGERHUT RECEIVABLES, INC.,
Transferor
AXSYS NATIONAL BANK
(formerly Fingerhut National Bank),
Servicer
and
THE BANK OF NEW YORK (DELAWARE),
Trustee
on behalf of Series 1998-3 Securityholders
of the Fingerhut Master Trust
SECOND AMENDMENT
Dated as of July 29, 1999
to
SERIES 1998-3 SUPPLEMENT
Dated as of July 30, 1998
to
AMENDED AND RESTATED POOLING AND SERVICING AGREEMENT
Dated as of March 18, 1998
SECOND AMENDMENT dated as of July 29, 1999 ("Second
Amendment") to SERIES 1998-3 SUPPLEMENT, by and among Fingerhut
Receivables, Inc., as Transferor (the "Transferor"), Axsys
National Bank (formerly named Fingerhut National Bank), as
Servicer (the "Servicer") and The Bank of New York (Delaware), as
Trustee (the "Trustee"). Capitalized terms used but not defined
herein shall have the meanings assigned to them in the Agreement
(as hereinafter defined).
WHEREAS, the Transferor, the Servicer and the Trustee
have heretofore executed and delivered the Amended and Restated
Pooling and Servicing Agreement dated as of March 18, 1998, by
and among the Transferor, the Servicer and the Trustee, as
supplemented by the Series 1998-3 Supplement dated as of July 30,
1998 to the Pooling and Servicing Agreement, as amended by the
First Amendment dated March 17, 1999 (the "Series Supplement").
The Pooling and Servicing Agreement, as supplemented by the
Series Supplement is referred to herein as the "Agreement"); and
WHEREAS, the Section 13.1(b) of the Pooling and
Servicing Agreement provides that the Transferor, the Servicer
and the Trustee with the consent of the Holders of Investor
Securities representing not less than 66-2/3% of the Invested
Amount of each and every Series or Participation adversely
affected, for the purpose of adding any provisions to or changing
in any manner or eliminating any of the provisions of the Pooling
and Servicing Agreement, or of modifying in any manner the rights
of the Investor Securityholders of any Series then issued and
outstanding, provided, however, that no such amendment shall
(i) reduce in any manner the amount of, or delay the timing of,
distributions which are required to be made on any Investor
Security of such Series without the consent of all of the related
Investor Securityholders, (ii) change the definition of or the
manner of calculating the interest of any Investor Securityholder
of such Series without the consent of the related Investor
Securityholder or (iii) reduce the aforesaid percentage required
to consent to any such amendment, in each case without the
consent of all such Investor Securityholders.
NOW, THEREFORE, the Transferor, the Servicer and the
Trustee hereby amend the Series Supplement as follows:
SECTION 1.1 The definitions of "Bank Rate," "Capped
Interest Rate," "Class A Facility Usage Fee," "Class A Program
Fee," "Class B Facility Usage Fee," "Class B Program Fee," "Class
C Facility Usage Fee," "Class C Program Fee," "Facility Unused
Fee," "Interest Component," "Required Senior Securityholders" and
"Specified Termination Date" from Section 2 of the Series
Supplement are hereby amended and restated in their entirety to
read as follows:
"`Bank Rate" shall mean, for any Funding
Period, an interest rate per annum equal to the sum of
(a) LIBOR and (b) 0.50% per annum, provided, however,
that:
"(i) if any Purchaser or Liquidity
Provider determines that (A) it would be
contrary to law or to the directive of any
central bank or other governmental authority
to obtain United Stated dollars in the London
interbank market to fund its investment in a
Senior Security for such Funding Period, or
(B) it is unable, by reason of circumstances
affecting the London interbank market
generally, to obtain United States dollars in
such market to fund its investment in such
Senior Security for such Funding Period, then
the Bank Rate for such Funding Period shall
be the Federal Funds Effective Rate plus
0.50%; and
(ii) following the occurrence and
during the continuance of a Pay Out Event,
the Bank Rate shall be an interest rate per
annum equal to the sum of (A) the Prime Rate
and (B) two percent (2%) per annum."
"`Capped Interest Rate" shall mean LIBOR plus
0.50%."
"`Class A Facility Usage Fee" shall mean, for
any Business Day, an amount equal to the product of (i)
a fraction the numerator of which is the actual number
of days from and including the preceding Business Day
to but excluding such Business Day and the denominator
of which is 360, (ii) 0.150% and (iii) the Class A
Invested Amount on the preceding Business Day."
"`Class A Program Fee" shall mean, for any
Business Day, an amount equal to the product of (i) a
fraction the numerator of which is the actual number of
days from and including the preceding Business Day to
but excluding such Business Day and the denominator of
which is 360, (ii) 0.100% and (iii) the Class A
Invested Amount on the preceding Business Day."
"`Class B Facility Usage Fee" shall mean, for
any Business Day, an amount equal to the product of (i)
a fraction the numerator of which is the actual number
of days from and including the preceding Business Day
to but excluding such Business Day and the denominator
of which is 360, (ii) 0.2125% and (iii) the Class B
Invested Amount on the preceding Business Day."
"`Class B Program Fee" shall mean, for any
Business Day, an amount equal to the product of (i) a
fraction the numerator of which is the actual number of
days from and including the preceding Business Day to
but excluding such Business Day and the denominator of
which is 360, (ii) 0.275% and (iii) the Class B
Invested Amount on the preceding Business Day."
"`Class C Facility Usage Fee" shall mean, for
any Business Day, an amount equal to the product of (i)
a fraction the numerator of which is the actual number
of days from and including the preceding Business Day
to but excluding such Business Day and the denominator
of which is 360, (ii) 0.2125% and (iii) the Class C
Invested Amount on the preceding Business Day."
"`Class C Program Fee" shall mean, for any
Business Day, an amount equal to the product of (i) a
fraction the numerator of which is the actual number of
days from and including the preceding Business Day to
but excluding such Business Day and the denominator of
which is 360, (ii) 0.475% and (iii) the Class C
Invested Amount on the preceding Business Day."
"`Facility Unused Fee" shall mean, for any
Business Day, an amount equal to the sum of (A) the
product of (i) a fraction the numerator of which is the
actual number of days from and including the preceding
Business Day to but excluding such Business Day and the
denominator of which is 360, (ii) 0.150% and (iii) the
excess of (a) the Class A Maximum Invested Amount minus
the Class A Invested Amount as of the preceding
Business Day and (B) the product of (i) a fraction the
numerator of which is the actual number of days from
and including the preceding Business Day to but
excluding such Business Day and the denominator of
which is 360, (ii) 0.2125% and (iii) the excess of
(x)the sum of the Class B Maximum Invested Amount and
the Class C Maximum Invested Amount over (y) the sum of
the Class B Invested Amount and the Class C Invested
Amount, each as of the preceding Business Day."
"`Interest Component" shall mean, with
respect to any Commercial Paper (i) issued on a
discount basis, the portion of the face amount of such
Commercial Paper representing the discount incurred in
respect thereof and (ii) issued on an interest-bearing
basis, the interest payable on such Commercial Paper
(in each case including the related Commercial Paper
dealer fees payable in connection with the issuance of
such Commercial Paper and any fees due and owing
pursuant to Section 2.03 of the Security Purchase
Agreement)."
"`Required Senior Securityholders' shall mean
(a) prior to the Specified Termination Date, the
Holders of Senior Securities whose Purchaser Group
Percentages aggregate more than 50% and (b) after the
Specified Termination Date, the Holders of Senior
Securities evidencing undivided interests aggregating
more than 50% of the sum of the Class A Invested
Amount, the Class B Invested Amount and the Class C
Invested Amount."
"`Specified Termination Date' shall mean
July 27, 2000, or such later date to which the
Specified Termination Date may be extended pursuant to
Section 2.05 of the Security Purchase Agreement."
SECTION 1.2 The definition of "Purchaser Group
Funded Portion" is hereby added to Section 2 of the
Series Supplement:
"`Purchaser Group Funded Portion" shall mean
at any time, with respect to any Purchaser Group, the
aggregate amount of the Class A Invested Amount, the
Class B Invested Amount or the Class C Invested
Amount, as the case may be, held by such Purchaser
Group at such time."
SECTION 1.3 The first paragraph of Subsection 6.15(b)
of the Agreement is hereby amended and restated in its entirety
to read as follows:
"(b) Notwithstanding anything in Section
6.15(a) hereof to the contrary, any acquisition of
Additional Invested Amounts pursuant to Section 6.15(a)
hereof may be allocated other than pursuant to the
Purchaser Group Percentages; provided, however, that in
no event shall the Purchaser Group Funded Portion of
the Senior Securities held at any one time by Four
Winds Funding Corporation and its related Purchaser
Group exceed the Purchaser Group Funded Portion of the
Senior Securities held at such time by Kitty Hawk
Funding Corporation and its related Purchaser Group;
provided, further, that no Series 1998-3 Securityholder
shall be allocated more than the Purchaser Group
Percentage of the Facility Limit; and provided,
further, that the Invested Amounts of each Class of
Series 1998-3 Securities are increased
proportionately."
SECTION 1.4 Subsection 10(n) of the Series Supplement
is hereby amended and restated in its entirety to read as
follows:
"(n) Each of the Transferor and the Servicer
hereby agrees and consents to the assignment by each
Conduit Purchaser from time to time of all or any part
of its rights under, interest in and title to this
Agreement and the Senior Securities of its Purchaser
Group to any Liquidity Provider or Program Support
Provider for such Conduit Purchaser. In addition, each
of the Transferor and the Servicer hereby consents to
the assignment by each Conduit Purchaser of all of its
rights under, interest in and title to its Purchaser
Group Funded Portion of the Class A Invested Amount,
the Class B Invested Amount and/or the Class C Invested
Amount, as applicable, to the related Alternate
Purchaser in the event such Conduit Purchaser
determines not to fund any Additional Invested Amount
hereunder. Notwithstanding anything to the contrary in
this subsection 10(n), the Transferor and the Servicer
do not consent to the assignment by each Conduit
Purchaser of all or any part of its rights under,
interest in and title to (i) the Senior Securities of
its Purchaser Group or (ii) its Purchaser Group Funded
Portion of the Class A Invested Amount, the Class B
Invested Amount and/or the Class C Invested Amount, as
applicable, in each case if (A) such attempted
assignment will cause the number of Persons in any
Purchaser Group holding any interests described above
to exceed five (5) or (B) such attempted transfer would
cause the number of Targeted Holders to exceed one-
hundred."
SECTION 2. Ratification of Agreement. As amended by
this Second Amendment, the Series Supplement is in all respects
ratified and confirmed, and the Series Supplement as so amended
by this Second Amendment shall be read, taken and construed as
one and the same instrument.
SECTION 3. No Waiver. The execution and delivery of
this Second Amendment shall not constitute a waiver of a past
default under the Agreement or impair any right consequent
thereon.
SECTION 4. Counterparts. The Second Amendment may be
executed in two or more counterparts including telecopy
transmission thereof (and by different parties on separate
counterparts), each of which shall be an original, but all of
which together shall constitute one and the same instrument.
SECTION 5. GOVERNING LAW. THIS SECOND AMENDMENT SHALL
BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
DELAWARE, WITHOUT REFERENCE TO ITS CONFLICT OF LAW PROVISIONS,
AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER
SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
SECTION 6. Effective Date. This Second Amendment
shall automatically become effective as of the date upon which it
has been executed by the Transferor, the Trustee, and the
Servicer, and has been consented to by the holders of all of the
Senior Securityholders.
IN WITNESS WHEREOF, the Transferor, the Servicer, the
Trustee and the Senior Securityholders have caused this Second
Amendment to be duly executed by their respective officers,
thereunto duly authorized, as of the day and year first above
written.
FINGERHUT RECEIVABLES, INC.,
as Transferor
By: /s/ Brian M. Szames
Name: Brian M. Szames
Title: President
AXSYS NATIONAL BANK
(formerly named Fingerhut National Bank),
as Servicer
By: /s/ Brian M. Szames
Name: Brian M. Szames
Title: Treasurer
THE BANK OF NEW YORK (Delaware),
as Trustee
By: /s/ Reyne A. Macadaeg
Name: Reyne A. Macadaeg
Title: Assistant Vice President
By signing this Second Amendment, the following Senior
Securityholders hereby consent to such Second Amendment.
BANK OF AMERICA, N.A.,
as Senior Securityholder
By: /s/ Elliott T. Lemon
Name: Elliott T. Lemon
Title: Vice President
THE FIRST NATIONAL BANK OF CHICAGO,
as Senior Securityholder
By: /s/ Brooks P. Crankshaw
Name: Brooks P. Crankshaw
Title: First Vice President
COMMERZBANK AKTIENGESELLSCHAFT, CHICAGO
BRANCH, as Senior Securityholder
By: /s/ Carl H. Jackson
Name: Carl H. Jackson
Title: Vice President
By: /s/ James F. Ahern
Name: James F. Ahern
Title: Vice President